Atkins Pickle Co., Inc.

National Labor Relations Board - Board Decisions

Apr 7, 1970

181 N.L.R.B. 935 (N.L.R.B. 1970)

ATKINS PICKLE COMPANY, INC. 935
Atkins Pickle Company , Inc. and Chauffeurs,
Teamsters and Helpers Local Union No. 878,
affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers
of America . Cases 26-CA-2987, 26-CA-3077, and
26-CA-3186
April 7, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On August 8, 1969, Trial Examiner Phil Saunders
issued his Decision in the above-entitled proceeding,'
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, brief, and the
entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner with the following modification:
We do not adopt the Trial Examiner's conclusion
that Respondent's announcement of its
no-solicitation rule violated Section 8(a)(1) of the
Act. The Trial Examiner reached this conclusion
because of the timing of the rule's promulgation, its
restriction to union activities, and evidence showing
that Respondent had permitted in a few instances
other solicitations during working hours (for a
wreath and for orders of eggs). However, it appears
from the testimony of president Hall, whom the
Trial Examiner apparently credited in this respect,
that the rule was necessary because employees after
the start of the Union's organizing campaign were
found to be leaving their jobs and gathering in small
groups, thereby interfering with production. This
circumstance adequately explains on a
nondiscriminatory basis the timing of the rule's
promulgation and its restriction to union solicitation
only. Further, there is nothing in the record to
indicate that the isolated instances of other
'Case 26-RC-3049 formerly consolidated with the above-numbered cases
was severed from this proceeding by Board Order dated February 10, 1970
'At one point in the Trial Examiner 's Decision the date of Fisher's
discharge is inadvertently stated as being September 30, rather than
September 20, the actual date of the discharge
permitted solicitations to which the Trial Examiner
adverted resulted in a corresponding interference
with production. On all the evidence, we find that
the facts relied upon by the Trial Examiner are not
sufficient to warrant his conclusion that
Respondent's announcement of the rule was
intended as a retaliation for the employees' union
activity '
The Trial Examiner found that the Respondent
discharged employee Fisher solely because, and
employee Williams partly because, they testified
unfavorably to the Company at the early sessions of
the hearing in this proceeding and that the
Respondent thereby violated inter alia , Section
8(a)(4) of the Act. We agree with these findings.
The Trial Examiner failed, however, to make any
conclusion of law nor any recommendation
concerning appropriate remedial provisions with the
respect to such violations. We shall remedy these
omissions.
ADDITIONAL CONCLUSION OF LAW
By discharging employees Fisher and Williams
because they testified against the Respondent at a
hearing under the Act, the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(4) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Atkins & Pickle Company,
Inc., Atkins, Arkansas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Substitute the following for paragraph 1(d) of
the Trial Examiner's Recommended Order:
"(d) Discharging or otherwise discriminating
against an employee because he has given testimony
in any proceeding under the Act."
2. Substitute the attached notice for the notice
attached to the Trial Examiner's Decision.4
'The General Counsel did not allege that the rule itself was
presumptively invalid In the absence of full litigation of this issue, (there is
some indication that the rule was understood by employees as interdicting
solicitation only during paid working time ) we find it unnecessary to pass
on his conclusion that a rule against solicitation on "company time and in
working areas" (the language of the rule) or "working time" (the Trial
Examiner's phrasing of the rule) is presumptively valid
'In the event that this Order is enforced by a judgment of the United
States Court of Appeals, the words in the Notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board "
181 NLRB No. 144
936
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
We hereby notify our employees that
WE WILL NOT discourage membership in Teamsters,
Chauffeurs, Warehousemen and Helpers Local Union
No 878, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other union, by discharging or by
otherwise discriminating against any employees because
of their union activities
WE WILL NOT interrogate employees concerning their
union activities, memberships, and sentiments.
WE WILL NOT threaten employees with withdrawal of
insurance benefits as a consequence of their union
activity.
WE WILL NOT solicit the withdrawal of union
authorization cards
WE WILL NOT discharge or otherwise discriminate
against any employee because he or she has given
testimony in any proceeding under the Labor Act
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to join or not to join a union and to engage in
union or concerted activities
WE WILL offer Neva Ferguson, James Fisher, and
Nina Williams, immediate and full reinstatement with
backpay
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
above-named Union or any other labor organization
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX December 12, 1968 The main issues litigated were
whether or not the Company violated Sections 8(a)(1), (3),
and (4) of the National Labor Relations Act, as amended
The Company denied the unfair labor practice allegations.
Hearings were held before me in August and September
1968, and in February 1969, and all parties were
represented and were given full opportunity to examine
and cross-examine witnesses, to introduce evidence, and to
argue orally. The Company and General Counsel filed
briefs and I have given them due consideration
Upon the entire record and from my observation and
demeanor of the witnesses, I make the following-
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times material
herein, an Arkansas corporation with a plant located at
Atkins, Arkansas, where it is engaged in the processing
and distribution of pickles and peppers. During the past
12 months, Respondent, in the course and conduct of its
business operations, purchased and received at its Atkins,
Arkansas plant, materials and goods valued in excess of
$50,000 directly from points located outside the State of
Arkansas, and during the same period, sold and shipped
from its Atkins, Arkansas plant, products valued in excess
of $50,000 to points outside the State of Arkansas By
virtue of its operations described above, Respondent is
and has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and I so find.
II. THE LABOR ORGANIZATION INVOLVED
ATKINS PICKLE
COMPANY, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance
with its' provisions, may be directed to the Board's Office,
746 Federal Office Building, 167 North Main Street,
Memphis, Tennessee 38103, Telephone 901-534-3161
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Trial Examiner: The original and
amended charges in Case 26-CA-2987 were filed on
January 24 and July 2, 1968, respectively, by Chauffeurs,
Teamsters and Helpers Local Union No 878, Affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein the
Union, against Atkins Pickle Company, Inc., herein called
the Respondent or Company The charge in Case
26-CA-3077 was filed on May 7, 1968, by Neva Ferguson
against the Respondent, and the original charge in Case
26-CA-3186 was filed by the Union on October 10, 1968.
The latter case was consolidated with the prior cases on
The Union is now, and at all times material hereto has
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Union began its organizing campaign among
employees of the Respondent during the latter part of
1967, and the first union meeting for employees occurred
on or about November 1, 1967 Pursuant to a Stipulation
for Certification Upon Consent Election executed by the
parties on November 30, 1967, an election by secret ballot
was conducted on January 19, 1968 The tally of ballots
showed that there were approximately 173 eligible voters
and that 172 ballots were cast, of which 76 were for the
Union, 89 were against the Union, 6 were challenged, and
I was void.
The cases and complaints, as consolidated, allege that
Robert Switzer and Dilton Austin, admitted supervisors,
interrogated employees and Austin solicited employees to
withdraw signed authorization cards from the Union, that
Respondent's president, Carl Hall, threatened to cancel
existing insurance plans if the Union was selected, and
that Respondent maintained an illegal rule prohibiting
employees from engaging in group meetings or discussions
of the Union during working time It is also alleged that
on or about March 25, 1968, the Company
discriminatorily discharged Neva Ferguson, that after
reinstatement, on or about July 17, 1968, the Respondent
discriminated against Ferguson in assignments of work,
and that on or about August 13, 1968, the Company again
ATKINS PICKLE COMPANY, INC. 937
wrongfully discharged Neva Ferguson .' In Case
26-CA- 3186 it is alleged that the Company unlawfully
discharged James Fisher and Nina Williams
This record shows that during the latter part of
November , 1967, the Company formulated a rule which
stated that there would be no union activities in the
working areas during working hours in the plant. It
appears that the rule was initially announced to the
supervisors through Respondent ' s vice president, D. H.
Wallace, was then made known to employees prior to the
election Following the election on January 19, 1968, a
notice was placed on the bulletin board which reads as
follows
It is the policy of Atkins Pickle Company that there
shall be no union activities on company time and in
working areas Any employee violating this policy will
be disciplined accordingly 3
President Hall testified that during the campaign this
rule was necessary because employees were leaving their
jobs and gathering into small groups which was interfering
with production Hall and Wallace also related that for
several years prior to this rule , the Company had signs in
the plant which prohibited anyone from coming on the
premises other than employees as they had encountered
difficulties with outsiders and insurance men coming into
the plant.' The Respondent argues that the testimony
shows it was never their intention to prevent union
activity, that the rule here in question was promulgated to
maintain production , and that employees did engage in
union activity during working hours and in working area
without Respondent taking corrective or disciplinary
action
A rule prohibiting union solicitation on company
premises during working time is "presumptively valid,"
but the presumption of validity is rebuttable by showing
that the rule, though limited to working time, was
promulgated not to promote efficiency of production but
for the discriminatory purpose of repressing the employees
in the legitimate exercise of the rights guaranteed under
Section 7 of the Act In the final analysis, it is the real
purpose of the rule which is the deciding and determining
factor From this record as a whole - based on the events
- the timing - and overall prevailing circumstances, I
find that the Respondent ' s announcement of the rule was
not made solely to prevent interference with normal plant
production , but rather was intended as a retaliation for
engaging in union activities and the announcement was to
this extent unlawful and a violation of Section 8(a)(1) of
the Act.4
Evelene Turner ' s credited testimony reveals that
Supervisor Dilton Austin recently solicited contributions
for a wreath , and made the request for an employee's
assistance in this respect during working . hours at the
plant Vice President Wallace has permitted a former
employee to take orders for eggs among workers in the
plant, and Wallace also admitted he has made office
contributions to plant employees for the benefit of various
'The 8(a)(1) allegations , as outlined above, fully encompassed Objections
6, 8, and 10 in Case 26-RC-3049 The General Counsel and the Union
contend that because of the Respondent 's unfair labor practices the
election on January 19, 1968, should be set aside
'Respondent ' s Exhibit I
'In February 1968, the Company printed an employee's handbook, and
in it announced a rule forbidding solicitation of any type and also
prohibiting the distribution of any literature on company time in working
areas
'Republic Aviation Corporation v N L R B , 324 U S 793, 803, at fn
10, Memphis Publishing Company. 133 NLRB 1435
organizations. These factors, combined with the timing of
its oral promulgation - immediately following the start
of the organizing campaign by the Union and then posting
the rule in written form on the bulletin board right after
the election with union activities as its specific limitation,
clearly reveals that the rule was formulated and instituted
for the purposes of interfering with employees' rights
under Section 7 of the Act.
Employee Nina Williams gave credited testimony
revealing that within a few weeks prior to the election,
Supervisor Robert Switzer inquired how she was feeling.
Williams answered that she was not feeling so good, and
Switzer then stated, "Maybe your conscience is bothering
you." Switzer then mentioned that Williams had been
attending union meetings, and Williams replied she had
not missed one of them Switzer then asked, "How are
things going9" Williams testified that Switzer had been a
good personal friend of the family for many years and this
was the only occasion he had inquired about the Union or
her activities in connection therewith. This record also
shows that during the week prior to November 30, 1967,
then Supervisor Switzer inquired of employee Imogene;.
Roberds "how the union meeting was going9" Roberds
replied, "Fine. We had a full house at the last meeting "
She then added that about 86 percent of the employees
had signed cards Switzer asked if she did not mean 86
people and was told, "No, sir, eighty-six percent " Switzer
admitted that he had extensive conversations about the
Union with both Williams and Roberds on many
occasions, but only in a "friendly manner." Switzer also
admitted he could have "casually" asked Roberds about
union meetings, and possibly he could have also inquired
as to the status of union cards
This record further shows that around the first of
December 1967, Dilton Austin, foreman in the labeling
department, approached employee John Ennis during
working time inquired of Ennis if Chester Harris had
signed a card. Approximately 3 days later Austin again
approached Ennis and this time asked if Fred Kendrick
had signed a union card.'
With the interrogations by Switzer and Dilton Austin
the Company obtained information relative to the
employee attendance at union meetings, and the names
and numbers or percentage of employee card signers This
is a type of employer conduct which is clearly prohibited
by Section 8(a)(I) and consistently held violative of the
Act. It is also well established by the Board and the
courts that the illegality of such inquiries or remarks are
not cured by the casual nature of the conversation or the
personal relationships of the parties thereto, nor by the
employee rejection of such questions or statements.
John Ennis gave reliable testimony which shows that at
an afternoon meeting on January 11, 1968, Foreman
Dilton Austin spoke to his labeling crew - about 15
employees - and informed them that his wife Opal, a
rank-and-file employee in his department, should
withdraw her union card because of her loyalty to him
and his loyalty to the job he held Ennis credibly testified
that Austin then went on to explain the procedure by
which his employees could withdraw their card if anyone
wanted to do so and placed a sheet of paper on a desk
and stated, "Here is the address to write to, to get your
cards back, and write something like the Union
misrepresented things to us " Ennis also related that later
'Foreman Dilton Austin could not remember asking Ennis about "any
specific person" signing union cards, and on this basis denied the inquiries
attributed to him by John Ennis
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on during the day, -Austin came back to where he and
several other employees were working and then stated,
"My job is at stake " Testimony by Ennis further reveals
that later in the afternoon Austin and his wife approached
Ennis and inquired, "Johnnie, can't she vote for the Union
even though she signed for her card back," and Ennis
replied that she could At some time subsequent to the
above events, Austin accompanied his wife into an area in
the plant where Don Martin, an employee was working
Austin then asked Martin about the petition and Austin's
wife signed the withdrawal petition with her husband's
presence in the general vicinity Dilton Austin admitted
that on the morning of January 11, 1968, he had engaged
in a conversation with officials of the Company - Hall
and Switzer - and in respect to his wife's card he was
told "it did not set to well with them " Austin admits the
January meeting, events, and circumstances, and the only
real factual question is whether or not Austin told the
employees to indicate that the Union made
misrepresentations to them when writing and asking for
withdrawal of their cards. On this issue I have found in
favor of the General Counsel, and I cannot and do not
credit the denials of various witnesses for the Company
who claim that Austin made no such remark.
As pointed out, it is indicated that Austin's meeting
was precipitated by employee inquiries as to what means
they could use in requesting withdrawal of their cards, but
somewhat contrary to Hall's testimony, Austin stated that
these inquiries were merely rumors Moreover, the
Company never indicated to employees its neutral position
and, as mentioned by the General Counsel, the
Respondent actually indicated its interest by specifically
requesting that the employees submit a copy of their card
withdrawal letter to the Company Under these
circumstances the Respondent went beyond mere aid or
advice to employees in outlining a procedure to recall
their authorization cards. Here the high echelon officers of
the Company were well aware of Austin's interest as they
had spoken to him about such a matter that very
morning, and from the inferences in Austin's talk to his
department concerning the card his wife had signed, it was
made quite obvious that those employees who did not
submit a request to withdraw their cards might also be
disloyal to the Company It is well established law that
Section 8(a)(1) of the Act makes it unlawful for an
employer to instigate and promote a decertification
proceeding or a union repudiation petition '
Tempie Hudson credibly testified that a few days prior
to the election, as aforestated, he attended a departmental
meeting of all dock employees -- about 40 employees --
at which President Hall informed them of financial
conditions and also mentioned a large loan the Company
had to pay off on a certain date Hudson stated that
employee Annie May then asked a question about the
status of their insurance if the Union was successful in
organizing, and Hall replied that in this event the
insurance would be cancelled ' Employees James Fisher
and Parlie Crites corroborated the testimony of Hudson,
but Crites further stated that following this meeting she
talked to her foreman, Russell York, and asked if she had
misunderstood Hall because she thought he had stated
that the insurance would stop if the Union won the
election York replied, "Yes, that is what he said You did
not misunderstand him " Crites then told York "this is
'Clark A Lewis Co, 122 NLRB 865, N L R B, v Parma Water Lifter
Co , 211 F 2d 258, 262 (C A 9), cert denied 348 U S 829, NLRB v
Louisville Container Corp 209 F 2d 654, 655 (C A 6)
the only insurance I have, and I would like to know,"
York said that he would take the question up to the front
office. He returned shortly and informed Crites, "Mr
Hall will call you in his office " A little while later, York
returned and told Crites, "They have called the insurance
man and he will be up here, and he will talk to us about
insurance and he will also answer your question," but
nothing was said at the latter meeting concerning Crites'
question 8
Board decisions clearly indicate that Section 8(a)(1) of
the Act is violated when an employer tells its workers that
they will withdraw employee insurance benefits if the
Union is selected as the employees' bargaining agent
It is the contention of the General Counsel that Neva
Ferguson was initially terminated on or about March 25,
1968, because of her union and concerted activities On
June 19, 1968, Ferguson received a letter from the
Respondent requesting that she return to work and
assume her old duties, and she returned to work on July
17, 1968 Subsequent to this date, the General Counsel
maintains that Respondent embarked upon a course of
discrimination by assigning Ferguson to a very arduous
task, namely, packing gallon jars on the north side
packing line, and contends that Respondent adamantly
adhered to the position that the north side packing line
job was the only work they had available for her and if
she could not do it she would have to leave. It is further
the position of the General Counsel that Ferguson's
departure from work on August 12, 1968, constituted a
constructive discharge on the part of the Company
The Respondent maintains Ferguson's discharge on
March 25, 1968, was primarily due to excessive absences
from work starting in December 1967, and because she
was physically unable to do her job The position of the
Company as to subsequent events, is that upon return
Ferguson could not perform her normal duties as a packer
although she had a doctor's release returning her to
full-time duty, that there were no other job openings
available, and that these circumstances resulted in
Ferguson clocking out and leaving the plant
This record shows that Ferguson was initially employed
by the Respondent on May 4, 1962, and since that time
she has performed just about every job that a woman
employee can perform with the exception of working in
the lab A brief enumeration of these jobs includes the
following' Working on the sorting belt, sorting out various
sizes of pickles or different packs, working on the packing
line, packing various sizes ranging from 8-ounce jars to
gallon jars, placing spice in jars, dumping glass, labeling
products, operating the pasteurizer machine, and
'The employees presently have group hospitalization and life insurance
'Hall testified his remarks at the meeting came from notes he had made
on a calendar pad, and in respect to insurance informed the employees that
"any" insurance would have to be negotiated, but the insurance agency the
Respondent was doing business with had to have participation by 75
percent of the employees to insure them under group rates Hall admitted
he did not keep any notes insofar as questions asked of him during or after
the meetings The dock employees were the first group or department Hall
spoke to and five or six subsequent meetings were then held so that
eventually all employees were contacted Annie May testified for the
Company, and ventured it was not her understanding that the insurance
would be cancelled if the Union won Supervisor York admitted that Parlie
Crites inquired about insurance after the meeting and asked him about a
30-day notice prior to cancellation Respondent witnesses Duvall, Borham,
Holytield, Matchet, and Critz testified that Hall answered the insurance
question of Annie May by stating that this matter would have to be
negotiated between the Company and the Union However, several of them
testified that Hall did not say anything about insurance until the question
was asked this, is contrary to Hall's own testimony , as noted above
ATKINS PICKLE COMPANY, INC 939
operating the packing machine
Ferguson attended meetings of the Union and missed
only one. She signed a card for the Union in early
November 1967, she was on a committee to make
arrangements for a union luncheon, she solicited union
cards, and, talked to approximately 40 or 50 employees
about the Union. Ferguson testified that in November
1967, five employees, including herself, were discussing the
benefits of the Union when her foreman - Coy Auston
-- entered, and on this occasion Austin stated that he did
not go along with them, and he also thought the
employees did not need a third party because they had
always been able to solve their problems, and told them
the Company could not afford a union. Ferguson asked
him if any of the employees had ever mentioned money,
adding that they were seeking better working conditions
"If the Union is so bad for us," stated Ferguson, "Why
does Mr. Hall care for us having a union" Austin again
stated that the Company could not afford the Union
Later on Austin called Ferguson aside, saying, "I want to
finish this discussion. I know there is no need for me
asking you, because you are for the Union." Ferguson
interjected, "Yes, I am " "Do you truthfully think that it
will help us"" inquired Austin. "Yes, I do," replied
Ferguson Austin did not deny the above conversations. In
November 1967, Ferguson and a few other employees also
voiced objections to Plant Superintendent Burgess
Brashear about certain working conditions and further
inquired about new employees working overtime hours
Brashear promised to take care of these matters, but
stated that he could not do so immediately because "it
was processed by the Union." Ferguson testified that in
the middle of November 1967, Respondent's attorney
spoke to employees and in his remark stated, there was a
rumor a lady employee received a check and had told
others it was a union payoff. Ferguson then spoke up and
said she was the one who had jokingly made this remark
but actually it was an insurance check, and then Ferguson
went on to say the Union did not have to pay her because
she was for the Union. Admittedly, the Company had
ample knowledge of Ferguson's early and continued
efforts on behalf of the Union
On October 12, 1967, Ferguson received a shock from a
switch on a packing machine she was operating She then
talked to Brashear about it, and after an insulated
platform was provided Ferguson again attempted to run
the packing machine, but encountered considerable pain in
her arm and as a result she was referred to a Doctor
Malone Ferguson stated that Dr Malone diagnosed the
problem as muscle spasms in her arm and neck. Ferguson
returned to work the next day and operated the packing
machine until December I, 1967, but continued to see Dr
Malone once a week. She testified that on December 1,
1967, Dr Malone informed her that she was not making
any progress and she should take a week off. It appears
that Ferguson was then placed on workmen's
compensation ' Around Christmastime she made a trip to
the plant for business purposes, and while there informed
Plant Superintendent Brashear that she was not satisfied
with her recovery Brashear then referred Ferguson to a
Doctor Franklin, and he treated her for 2 weeks for
muscle spasms and then permitted her to go back to light
duty work. On January 21, 1968, Ferguson returned and
went back to operating the packing machine - at this
time she was back under the care of Dr Malone - and
continued to run this machine for about 2 weeks. As a
result of a plantwide meeting, at which Ferguson discussed
with Supervisor Wallace the possibility of her receiving
more pay for operating the packing machine, she was
taken off the packing machine and Ferguson then packed
gallon glasses and fixed gift boxes, but was not regularly
assigned to any one job Ferguson stated that after
packing gallon jars on the north side packing line - she
requested lighter work because her arm was again
bothering her, and was given permission to move to lighter
work She testified that on one occasion she was cutting
cauliflower when Supervisor Coy Auston inquired, "Do
you mean your arm is bothering you that bad " Following
this incident, Ferguson did not request any further
transfers and continued to work packing gallon jars until
around the middle of February, 1968, when all of the
employees in the plant were laid off because of a glass
shortage A day or so following this general layoff,
Ferguson visited Dr Evans, the family doctor, and he
recommended that she have a partial hysterectomy.
Ferguson then contacted Brashear and informed him that
she would be off for about 4 weeks for this operation, and
Brashear requested that when she return to work she bring
a release with her from Dr. Evans. The operation was
performed on February 23, 1968, and she was released by
Dr. Evans on March 23, and was then told she could go
back to the plant However, while recovering from this
operation, Ferguson had visited Dr. Watson, a
neurosurgeon, who informed her that there was a
circulation blockage in her left arm On the date of her
release by Dr Evans, Ferguson also contacted Brashear
and informed him of her visit to Dr Watson and stated
that she was scheduled to see him on March 27, 1968.
Brashear then told Ferguson that since there was a layoff,
she should wait until after she had seen Dr Watson and
see what he had to say before returning to work. On
March 25, 1968, Ferguson contacted Brashear and asked
him if she could be off on April 25, 1968, in order to take
her daughter to a glee club meeting Brashear then
replied, "Neva, to answer your question, due to the
absences from work for the past 6 months, and due to
your injury, I feel that you will not be able to hold down
the job again. " Ferguson advised him that she was on
workmen's compensation, but Brashear informed her that
she was terminated.
Following her discharge, Ferguson remained under Dr.
Watson's care, and the appointment on March 27 revealed
that the circulation and pulse in her left arm had not
responded On April 9, 1968, Dr. Watson and Dr. John
Satterfield, a blood vessel surgeon, injected dye into her
veins, and this test revealed that the blood vessels were
pinched between her first and second rib near the left arm.
On April 11, 1968, they removed her upper left rib. It
appears that workmen's compensation coverage continued
during this period, and for several weeks Ferguson
remained under Dr. Watson and Dr. Satterfield's care
following her dismissal from the hospital on April 14,
1968, to ascertain if the operation had been successful
Ferguson received a letter from the Company dated
June 19, 1968, stating that the plant "desperately" needed
packers and asked her to return to work and to assume
her "old duties." She was also asked to see Dr. Franklin
and obtain a release to return to full-time work.-
Ferguson then called Brashear and told him she could not
understand why she had to see Dr. Franklin when she was
under the observations of Dr. Watson and Dr Satterfield
'At intervals thereafter, Ferguson received various amounts of
workmen's compensation payments as duly reflected in the exhibits of this
record
'"General Counsel's Exhibit 9
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Little Rock. On or about the middle of July 1968
ferguson visited Dr Watson, and testified the doctor then
returned her to work, but informed her what she could do
and what she could not do, that if it bothered her to go
home, and that there was no need to write a letter to the
Company about her medical history
On July 17, 1968, Ferguson returned to the plant, and
on the first morning worked on the south side packing line
under the direction of Supervisor Chris Kersten. The next
day she packed gallon pickle jugs on the north side
packing line." On the following day nothing was packed
on the north side and Ferguson went to the dock and
peeled onions Prior to the afternoon break, Kersten asked
Ferguson to go back to the packing line. She stated that
her arm had bothered her the day before and requested
that they send some of the other women to do the
packing Kersten told Ferguson he had been ordered to
keep her on the packing line During the afternoon break,
Ferguson spoke to Brashear and was told that the packing
line was the only job he had available to her He added
that she was classified as a packer and he wanted her on
the north side°and if she couldn't do it she would have to
go home.'' On the next day Ferguson packed small glasses
on both north and south side lines, and during ensuing
weeks she packed gallon jugs when the north side line was
running and during the intervals worked on the dock.
Ferguson further testified that on August 2, 1968, she
asked Supervisor Coy Austin if she could peel onions
rather than pack gallon jars on the north side, but was
informed that her place was on the north side. After she
began packing Austin removed lady employees Stone and
Peek from the north side packing line and placed them on
the dock, peeling onions Subsequently, Ferguson also
talked to Wallace, and testified that Wallace told her she
was classified as a north side packer, and if she could not
do this work to go back home Ferguson then reentered
the plant with the intention of returning home because she
did not feel well, but observed five packers on the north
side and thought that maybe they would let her work on
the dock, and asked Coy Austin about this and he said,
"No, your place is on the north side. You go to the
north." Ferguson then noticed Austin motion two
employees to leave the packing line, Mrs. Melton and
Jean Zastoutril, seasonal employees, and they left the
packing line and went to the dock.
Ferguson worked the morning of August 9, 1968,
packing gallon jars, but at noon she asked Brashear if
they would be packing gallon jars during the remainder of
the afternoon and was informed that they would. She
stated that she did not think that she could finish out the
day and would have to go home. Brashear replied "O.K ",
and Ferguson then left. She returned to work on Monday,
August 12, 1968, and packed gallon glass or jugs all day
long, but suffered pain in her arm and neck. The next day
she reported to work and was again assigned by Coy
Austin to the north side. When she informed him that she
"could not do it," Austin said, "I am not going to argue.
If I were you, I would go back home and stay until I am
able to pack gallon glass all day." Ferguson returned
home and has not returned to the Respondent's plant
"For purposes here, the plant has two packing lines The people working
on the north side line mainly packs the large gallon jugs frequently
weighing about 10 or 11 pounds - while the employees working on the
south side line packs pickles in much smaller containers or glasses At
certain intervals there is considerable lifting of gallon jugs for employees
packing on the north side line.
"The Company maintains that Ferguson was officially classified as a
packer in February 1968
since August 13, 1968.
Plant Superintendent Brashear made the March 25,
1968, decision to terminate Ferguson. He testified his
decision was based on absenteeism, the fact that she was
not physically able to do her job even on light duty, and
his feeling that Ferguson's job had been vacant long
enough and he had to fill it. Brashear stated that
Ferguson was best when packing pickles, and that it
requires about 6 weeks for a new employee to become
efficient in this type of work He testified that when a sick
employee returns and has a doctor's release specifying
light work they are given such jobs, but the Company
never takes "the initiative" in making these arrangements.
Brashear admitted the Company had a very liberal policy
regarding absenteeism prior to the election, that for all
practical purposes the packing on the north side line is
more difficult or "harder" because of the heavy gallon
jars, and also admitted that at the time he discharged
Ferguson no other employee had been terminated due to
absenteeism Brashear testified that Ferguson was called
back in July, 1968, because he needed packers on the
north side line, that she was classified as a north side
packer in February 1968, and that he had received a letter
from Dr. Watson stating that Ferguson had sufficiently
recovered to return to her regular employment." Brashear
stated that upon her return Ferguson asked him for light
work, but he informed her there was no such job
available, and also testified on several subsequent
occasions she told him that her arm was hurting Brashear
repeatedly stated in his testimony that he had the letter
from Dr. Watson stating that Ferguson could perform her
regular work.
Foreman Coy Austin testified that when Ferguson
returned to work in January 1968, she had a doctor's
release specifying light work and was given such work
whenever the shoulder or arm bothered her, Austin related
that upon her return in July, 1968, Ferguson informed
him that her arm was hurting, but he refused to take her
off the packing line, and admitted moving two lady
employees (Stone and Peek) from the packing line to jobs
peeling onions. Austin stated these two ladies were
seasonal employees while Ferguson was a permanent
employee and classified as a packer, and they were not as
skilled in packing as Ferguson. Austin also testified he
had been informed by Brashear that Ferguson had a
doctor's release stating she was able to do her regular job,
that they had offered her the second shift which would
have been light work, that Ferguson was kept as a
permanent employee because of her packing ability, and
that from time to time he had "leaned over backwards" to
please her.
Conversations and events in November 1967, with
Brashear and Coy Austin, as aforestated, duly reveal that
in this period Ferguson established herself in the eyes of
management as being highly conversant in expressing the
views of dissatisfied employees, and furthermore,
Ferguson announced in a meeting to all - including the
Respondent's attorney - that a check she had received
was not from the Union and the Union did not have to
pay her as she was already for the Union After the
January 19, 1968, election, as previously detailed herein,
Ferguson also confronted Wallace at a plant meeting and
requested higher wages for employees operating the
packing machine The request resulted in Ferguson being
transferred from this machine
"Respondent ' s Exhibit 2
ATKINS PICKLE COMPANY, INC. 941
Plant Superintendent Brashear stated that Ferguson
was terminated on March 25, 1968, because of her
absentee record and that she was not physically able to do
her job Brashear limited his consideration of Ferguson's
attendance record to the period following December 1967
In these respects, a brief recapitulation shows the
following- In October, 1967, Ferguson sustained an
on-the-job injury but, nevertheless, continued working up
until December 1, 1967. She then followed the advice of a
doctor and took a few weeks off in efforts to recuperate
from her on-the-job injury. During the latter part of
December 1967, she specifically informed Brashear of her
slow recovery from this injury and he referred her to Dr.
Franklin for treatment On about January 19, 1968, Dr.
Franklin released her on limited duty and on January 21,
1968, she returned to the plant and on occasions was then
given light work when her arm or shoulder troubled her.
Under these circumstances Ferguson worked until the
middle of February, 1968, when there was a general
shutdown of the plant. On February 23, 1968, Ferguson
had surgery for a female disorder, but was given her
release from Dr. Evans, on or about March 22, 1968. On
this date Ferguson then notified Brashear she was to see
Dr. Watson about her on-the-job injury which was still
causing her trouble and pain On March 25, 1968,
Brashear told Ferguson that due to her absences and
injury she was no longer able to hold down her job
From the above, the obvious pretextuous nature of
Ferguson' s termination is clearly and readily apparent
Here is an employee who had been considered by
management as a good worker for many years, and
admittedly was especially efficient and fast in her
individual efforts on the packing lines She then sustained
a serious injury while operating a packing machine, but,
nevertheless continued to work for some time thereafter
while also becoming active in the Union and in presenting
certain dissident employee viewpoints to management, as
aforestated. Next she accepts a doctor's suggestion by
resting at home for a few weeks and then follows the plant
superintendent's advice and consults Dr. Franklin, and
upon his release specifying light duty -- she returned to
work until a general layoff about the middle of February
1968' During the plant layoff or shutdown, Ferguson
undergoes surgery for a female condition, and a few days
subsequent to the doctor's release from this operation --
she is informed by Brashear that due to her absences and
injury she can no longer hold her job All of the above
events and circumstances are further intermingled with the
open admission by the Company that prior to the election
on January 19, 1968, employees could be absent for any
reason, and the change in attendance policy instituted
after the election, specified that employees merely notify
their supervisor -- one day ahead of their absence, and
admittedly this change in policy has nothing to do with
absenteeism based on valid reasons. From the admissions
in this record, Ferguson could have been absent with full
justification for any reason and without any notifications
up until at least January 19, 1968, and from thereafter she
would have been excused by merely telling her supervisor
one day ahead. The above factual disclosure actually
shortens the time period involved and available for the
Respondent's defense, to the date when the change was
made, instead of December, 1967, and there is no evidence
or contention that subsequent to policy change on
absenteeism, Ferguson did not let the Company know the
valid reasons for her absence. On the contrary, and at all
times, the plant superintendent was adequately and fully
informed of the medical and physical reasons for her
nonattendance. In accordance therewith, Ferguson was in
complete fulfillment with Respondent's changed policy
governing absences from work. It is also pointed out that
during these winter months involved herein, the plant was
not on its busy cycle, and for considerable durations
during this period it was even shut down with a general
layoff
Brashear also indicated in his testimony that he did not
know whether Ferguson would ever be able to do her job,
and further stated she merely had a doctor's statement
saying she could only do light duties, "and she was not
able to do that." This record reveals that when Ferguson
returned to work on January 21, 1968, she was fully
capable of doing light jobs, and did perform such duties in
addition to heavier work at other times on the packing
line.
Before passing on to the latter aspects in the sequence
of this case it should be pointed out that the plant
involved in this proceeding is located in a very small
community, Atkins, Arkansas, and for many years most
of the employees have enjoyed a close business and family
relationship with management. As so clearly indicated in
this record, rank-and-file employees had strong ties with
several supervisors, and at most any time they could even
telephone or visit with the Respondent's president for
most any reason, and the Company had also extended
special favors and considerations to a great many of its
workers because of personal friendships, and due to close
acquaintance generally stemming from the small size in
population of the town in which the plant is located. It
appears to me that these factors and background are of
particular significance in this situation . Here is a company
with a past benevolence in helping and assisting its
employees and their families in numerous situations, and
then one of their most skillful packers sustains a serious
on-the-job injury which was closely followed by another
ailment and misfortune requiring surgery - when all of a
sudden the Company demonstrates a complete breakdown
and reversal of its former sincere concern for its
employees, and summarily notifies its convalescing
employee now fully indentified with the Union and
dissident workers - that her long time employment is
terminated This conduct , even standing along, would cast
serious doubt on the Respondent's true motivations, but
the timing of the policy change in reporting absences, the
fact that the Company knew full well the valid reasons for
her nonworking status, the fact that Ferguson did perform
both light duty and heavy work up until February, 1968,
general layoff, the fact that no other employee was ever
terminated due to absences, and the facts which
established the independent 8(a)(1) violations, must all be
considered in the final evaluations In accordance with the
above there is a preponderance of evidence to conclude
that Ferguson was discriminatorily terminated on March
25, 1968, and I so find.
On June 19, 1968, Ferguson was asked to return to the
plant, and on July 17, 1968, did so, as aforestated, and
worked until August 13, 1968. The day after her return
Ferguson was assigned to packing duties on the north side
line. As pointed out, it is undenied that Supervisors
Kersten and Brashear later reiterated Respondent's
position , stating that Ferguson was classified as a packer
and he wanted her on the north side, and he also made it
clear that if Ferguson was unable to perform her job, she
would "have to go home " The General Counsel argues
that in view of Supervisor Coy Austin's testimony that
Ferguson was classified as a packer, and it was not
specified which side, and the failure of the Respondent's
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handbook to further break down classifications under
packers, shows that the decision to classify Ferguson as a
north side packer was made by high level management. In
this phase of the case, the main thrust of Respondent's
defense is that Ferguson was not placed on light jobs due
to the receipt of a letter from her doctor stating that she
was able to return to regular work.
It is obvious that Dr. Watson's letter to the Company
is a form letter as it states that " she is now sufficiently
recovered to return to her regular employment "
(Emphasis supplied ) On several occasions after her July
return, Ferguson also informed supervisors that her arm
was still bothering her and, therefore, needed light work.
However, there was never any suggestion or indication
that she should get a doctor's certificate so specifying,
and, moreover, Ferguson's previous regular employment
did not entail the full-time daily packing of heavy gallon
jars on the north side line
This record shows that employee Jack Caldwell
sustained an on-the-job injury while working a capping
machine which impaired his hand movements to some
extent, but after a splint was put on he returned to work
and was then assigned an inspection job on the pasteurizer
machine Ferguson testified that as an inspector Caldwell
merely had to watch the pasteurizer to observe if it was
operating properly, and this was lighter duty than his
former work on the capping machine. Ferguson also
claimed that employee Edna Hearne received preferential
treatment following surgery It appears that before having
surgery, Hearne was dumping glass which required
standing and lifting the cases of glass. Ferguson testified
that when Hearne returned to work she was placed on the
sorter belt which was a "sitting job," and merely required
the lifting of pickles from the belt The Respondent, while
substantiating Ferguson's testimony to the extent that
Hearne was placed on the grading line, contends that
Hearne's regular job was not dumping glass, but then
admitted she would sometimes help out other women
doing this type of work. Supervisor Coy Austin testified
that Hearne was given the assignment on the grader due
to the fact that the regular employee on this job, Ollie
Dixon, had to undergo surgery at the time in question.
From the above it appears the Respondent showed ample
justification in switching Hearne to the grading belt upon
her return and, therefore, no disparity of treatment as
contrasted to the circumstances involving Ferguson.
However, this situation clearly reveals the Respondent
constantly enjoyed a very fluid operation among
employees permitting the continual changing of work
assignments and the intermingling of different personnel
with various jobs, and to this extent adds credence and
weight to the General Counsel's position that Ferguson
was not rigidly bound to the north side packing line
Ferguson gave credited testimony to the effect that
employee Janie Harelson's job was changed from dumping
glass to working on the chipper belt following her return
to work after surgery. Brashear admitted that if Harelson
was put to work on the belt, this would be an easier job
than dumping glass In August 1968, Evelene Turner
sustained an injury while dumping glass her regular job -
and later returned to work without a doctor's excuse and
went back to dumping glass Although she did not request
an easier job, Supervisor Coy Austin then placed her on
the spice line a sitting job - and she remained on this
job for a short time when she was informed by Supervisor
Kersten that "If you don't think you can do this, you can
go and pack." Coy Austin admitted he gave Turner "light
duty" when she returned after her injury as he needed help
on the spice line In this situation the Respondent again
failed to introduce any evidence showing the actual
necessity for a doctor's statement specifying light jobs
before making or permitting such assignments
In August 1968, as aforestated, Ferguson asked Austin
if she could peel onions rather than pack on the north
side, and within a few minutes after refusing her request,
Austin removed Stone and Peek from the packing line
and placed both of them on the onion peeling fobs. Austin
stated that Ferguson had been retained because of her
packing record, and he needed all the skilled packers he
could get at this time He also stated that seasonal
employees -- Stone and Peek - were less skilled in the
packing operations However, this record shows these
workers had been employed for several years on a
seasonal basis, and had frequently performed packing
duties On another occasion Coy Austin could also
remember Ferguson asking to be taken off the packing
line and his refusal to grant this request. In another
instance he admitted switching Melton and Zastorutril
from the packing line to the job of pepper cutting
It appears to me the above incidents and circumstances
are further and ample evidence of the Respondent's
discriminatory daily assignment of Ferguson to the north
side packing line It is obvious the plant had numerous
and continual jobs available and which were, from a
physical standpoint, considerably less demanding than
packing, and if Ferguson had not been identified with the
Union she would have been so assigned The Company
also admits that Ferguson was offered reemployment in
July 1968, due to possible pay liability From the above,
and based upon other circumstances and events previously
detailed herein, I find that Respondent's conduct resulted
in a constructive discharge of Ferguson on August 13,
1968.
Alleged discriminatee Fisher was hired full time in
1962, as a laborer on the dock crew ' ° Fisher has been an
epileptic since he was 12 years old, and began receiving
medical treatment in 1960. Prior to this time he had
suffered epileptic attacks two or three times a month, and
such seizures 'lasted approximately 2 minutes. In 1960, his
doctor placed Fisher on certain medication and which he
is presently taking at "full strength " Fisher stated that in
1964 he had five or six attacks but during recent years he
has only had three or four seizures and with only a minute
or less in duration. Fisher has had seizures on several
occasions while at work but there was no evidence to show
that he had ever been injured on the job as a result of the
seizures.' S
Several days prior to Fisher's termination, he was on
top of a truck bed throwing salt into pickle tanks when he
suffered a brief epileptic attack On September 20, 1968,
he was called into Plant Superintendent Brashear's office
and in the presence of Supervisor York, was told he was
being discharged because of his health but he could draw
unemployment compensation. Brashear then reminded
Fisher of his seizure on the salt truck and told him if he
had not been caught he would have fallen off the truck It
appears that Fisher then asked that he be transferred to
another job such as netting pickles, but Brashear advised
him all of the jobs at the plant would be dangerous.
The General Counsel produced testimony through Huel
Dixon to the effect that in 1959 and 1960, Fisher had
suffered two attacks while working part time for the
"Prior to 1962 ,,Fisher had worked part time at the plant
"At the first hearing in August 1968, Fisher appeared as a witness for
the General Counsel and testified as previously detailed herein
ATKINS PICKLE COMPANY, INC 943
Company. Dixon stated the first attack happened on the
dock and lasted about a minute and a half, and he
reported this incident to then Plant Manager Switzer.
During the second attack Fisher was catching pickles and
it was of a short duration. Dixon also reported this
incident to Switzer
The Respondent's vice president, D H. Wallace,
testified that Fisher had a history of epilepsy and that his
attack in September, 1968, while on the truck - could
have been "extremely dangerous" as he might have fallen
some 8 feet to the concrete floor. Wallace admitted that
in May, 1966, he knew Fisher was an epileptic as he had
seen his personnel file or jacket. Wallace went on to state
that they had also considered reassignment of Fisher to
another job, but "hazards appeared to be plant wide."
Plant Superintendent Brashear stated that several years
ago he mentioned Fisher's physical condition to Switzer,
but Switzer was of the opinion that it was "all right" for
Fisher to stay on Brashear then related his own version of
the events that culminated in Fisher's discharge.
Supervisor Arvle Jones told him that Fisher suffered a
seizure while shoveling salt from the truck and that J. E.
Bewley had to catch him from falling Brashear stated this
incident served to emphasize the danger of Fisher's
continuing to work, and he then discussed the matter with
Wallace and Wallace agreed that he should be discharged.
Brashear then contacted Fisher on September 20 and told
him that he must let him go because of his condition and
the danger to his safety Brashear also told him that he
had considered transferring him to another job, but did
not feel this advisable from the standpoint of safety.
J E. Bewley testified as to the event in question and
stated that by the time he climbed up on the truck, Fisher
"was wet with sweat, had drops on his face, and he like to
have fell twice " Bewley further stated that he then helped
Fisher down from the truck and he told Supervisors Jones
and York about this incident. Arvle Jones corroborated
Bewley's testimony regarding Fisher, and testified he also
reported the incident to Brashear Jones admitted that
Fisher was a good worker
The sole question for my determination is whether
Fisher was actually discharged because of his epileptic
condition, or, as the General Counsel urges, whether this
reason was merely a pretext to discharge Fisher for his
activity in support of the Union. The General Counsel
argues that for several years Fisher continuously
performed various jobs, that it was well known throughout
the plant he had seizures and both Wallace and Brashear
were aware of Fisher's condition, that Brashear failed to
talk to J. E Bewley the sole witness to the seizure in
question, and that Brashear delayed Fisher's discharge by
at least 4 days
From this record as a whole, and for the reasons
advanced herein, I am convinced that Fisher was
discriminatorily discharged on September 20, 1968, in
violation of Section 8(a)(3) and (4) of the Act. Fisher had
continually suffered from epileptic attacks ever since he
started working for the Company - almost 10 years ago
and management had full knowledge of his condition,
yet it did nothing about this situation until the advent of
the Union, and after Fisher had testified for the General
Counsel at the first trial or hearing in August, as
aforestated. The Respondent places considerable emphasis
on their argument that former Plant Manager Switzer had
prevented the termination of Fisher when Brashear had
previously mentioned this health problem to him.16
However, in 1966, Brashear discharged J R. Strasinger
for the same reasons His case was similar to Fisher's in
that he was a known epileptic This incident reveals that
Brashear and Wallace could and did exercise their own
powers and authority when situations so demanded, and
even did so while Switzer was still at the plant As pointed
out, if Switzer's previous influence was as detrimental as
Respondent now contends, the Company would have
remedied matters immediately after Switzer's departure.
In Fisher's situation it was over 6 months after the
departure of Switzer before his discharge.
There is testimony by Brashear and Wallace that the
Company considered the reassignment of Fisher to other
work, but then concluded that all jobs at the plant were
too dangerous This testimony must be viewed in light of
the fact that Fisher had worked almost 10 years on the
dock crew without injury to himself or anyone else, and it
was only after positive identification with the Union that
safety precautions became the prevailing considerations
The plant has several types of jobs which require no
climbing or operation of machinery, and even if his attack
in September caused alarm because of a possible fall -
Fisher could have been reassigned to different tasks which
would have virtually eliminated any foreseeable risks "
It is also noted that Brashear did not discuss the
termination with J. E. Bewley - the only -witness to
Fisher's attack In this respect the General Counsel states.
He [Brashear] merely assumed that Fisher had
suffered an epileptic seizure. Even Bewley felt that
Fisher had become overly heated and reported to
Supervisor Jones that Fisher "was either too hot or
liked to have passed out, or something Jones, in turn,
reported to Brashear that something was wrong with
Fisher and did not tell him that Fisher had had an
epileptic seizure. Nor can it be argued that Brashear
sought Fisher's substantiation prior to deciding to
terminate Fisher.
This record also shows there was a lapse of 4 days
between the incident on the salt truck September 16 -
and the discharge on September 30 Certainly, if the
Company had merely been concerned with Fisher's safety
or possible liability under workmans compensation -
some sort of immediate measures would have taken.
Section 8(a)(4) was included in the Act to protect
employees in their right to resort to or assist the Board in
carrying out its statutory duties While Fisher was not a
union organizer or a key witness in the earlier cases - he
did testify at the August hearing, as aforestated, and there
is a sufficient showing that in so doing he precipitated his
discharge.
The complaint alleges that Nina Williams was
discriminatorily discharged on October 11, 1968.18 Wallace
testified that due to a "complete realignment" of the plant
laboratory - it was necessary to eliminate several jobs,
and over a period of time he reduced the laboratory
personnel from nine to five employees. Wallace stated that
upon his arrival at the plant in 1966, he found the
laboratory in an unsatisfactory condition, determined
there were too many employees, inadequate records and
specifications of the products, and a situation of
"familiarity" in the laboratory that did not lend itself to
"In February 1968 Switzer left the employment of the Company He
had hired a great many of the employees , and apparently was reluctant to
dismiss employees or to make any changes in the operations of the plant
"Supervisor Arvle Jones admitted that in 1959, Fisher was transferred
from a roof job because of his epileptic condition
"Williams was hired as a full -time laboratory employee in 1964, but
from 1952 until 1964 worked at the plant as a part-time seasonal
employee
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discipline He also referred to the fact that Williams'
familiarity with Switzer allowed her to go around her
immediate supervisor, and at times when a person was
needed in the laboratory, Williams was not available. He
stated her practice was to report to the laboratory at
varying hours and when finished with the jobs she
performed, would then sit around for the remaining time,
and he did not consider Williams as an employee with
initiative Wallace testified that in the fall of 1966,
Federal Food and Drug officials visited the plant, and
Respondent was thereafter cited for several unsanitary
conditions. At a hearing the Respondent was told these
conditions would have to be corrected, or otherwise the
plant would be shut down. Wallace related that changes
were then made - that a plant sanitationist was hired,
and many discrepancies in labels were corrected along
with certain other improvements.
Wallace explained that because of his realignment
efforts, as aforestated, it was necessary to keep only one
laboratory assistant and he selected Lilliam Bizzell even
though the other two laboratory assistants, Williams and
Imo Roberds,19 had more seniority Wallace testified he
retained Bizzell because in 1968 the workmen's
compensation situation had deteriorated to the extent the
insurance carrier 'recommended a full-time employee be
trained in first aid and be available at a first aid station.
Wallace learned that Bizzell was a high school graduate
and Williams was not, and had inquired at Arkansas
Tech, located in Russellville, regarding a first aid course
and found out a high school graduate could qualify for
such a course According to Wallace, this is the main
reason Bizzell was retained, and also because of her good
work attitude Starting in the 1968 fall semester , Bizzell
enrolled in the first aid course at Arkansas Tech, and
passed the course with a C grade 2u
Director of Laboratories, Joe Bradley, testified that
employees working in the lab were responsible for giving
first aid, and "whoever wasn't busy" was the one who
administered first aid Bradley revealed that in 1967,
Williams and Bizzell were both given merit raises, and
admitted recommending these wage increases. Bradley
also compared the work habits of Williams and Bizzell,
and concluded by stating that Bizzell is "forward looking"
and goes ahead under own initiative -- while Williams
does "a lot of resting" and waiting around Bradley
corroborated the testimony of Wallace in the
Respondent's contention that Williams would not strictly
adhere to her work schedule and would "go around"
Bradley by reporting directly to Switzer.
Tonly Flippin was hired by Bradley in June 1968 He is
eligible for an advanced degree in chemistry and biology,
and his work in the plant includes'certam quality control
duties in connection with the laboratory. Flippin testified
there was a difference in attitudes between Nina Williams
and Lilliam Bizzell In this respect he stated
Nina wasn't very agressive, and she didn't try to help
me at all Of course, I didn't know anything about the
industry when I first came in there.
Lillian was just the opposite. She would take -- you
know, jump up and help people, and when people came
in with brine or something she would always be trying
to do this She had a lot of initiative, and this would be
the main difference that I saw.
The Respondent's chief laboratory technician, Paul
Sweeden," stated that Williams would "go around"
Bradley and report directly to Switzer He stated that
Switzer also showed favoritism to Williams and when he
made a mistake in the formula he would get a "lecture"
from Switzer, but when Williams made similar mistakes
Switzer would say nothing to her Evelyn Leonard also
testified for the Company and authenticated the seniority
list for women employees 22
In its brief, the Respondent summarizes its position in
respect to Williams as follows: (1) Respondent was forced
to correct an unfavorable situation that existed in the
laboratory, (2) although Williams was senior to Bizzell the
latter was more qualified both from the standpoint of
providing a trained firstaid nurse and overall efficiency
and attitude, (3) Williams' testimony at the first hearing
was innocuous, and (4) existing company policy considers
qualifications and ability to perform the work when a
layoff or discharge of employees is involved
With reference to the organizational campaign of the
Union - Williams describes herself as "one of the
instigators." She secured approximately 20 or 30 union
authorization cards, and also made arrangements for the
building where the union meetings were held Her husband
was the first employee to contact the Union about
organizing the Respondent, and Williams attended every
session of the hearings in this matter before me and
testified on behalf of counsel for the General Counsel on
August 20, 1968, regarding certain 8(a)(I) conversations,
as aforestated
On October 11, 1968, Wallace informed Williams and
Roberds that their jobs were being eliminated Williams
testified Wallace also told them the Respondent's
insurance had been cancelled a year ago and this was the
reason he was keeping Bizzell, and the Respondent was
sending Bizzell to school because she had a high school
diploma
Williams admitted that Bradley had talked to her about
absenteeism, and admitted she reported at irregular hours.
Williams testified that after Switzer left Bradley informed
her to set up a 6-day week, and that he did not want
anyone getting overtime pay She also stated that on a few
occasions Bradley criticized her on the hours she was
keeping
It appears to me this is the more-or-less typical
situation where you have an employee working at the
plant for a period of years and doing satisfactory work,
but then becomes actively involved in attempts to assist a
union in its organizational campaign and then suddenly
finds herself in the disfavor of management. Williams may
have contributed to her ultimate discharge by her overall
attitude, but I am convinced that her open and continued
"in Case 26-CA-3186 -- it was originally alleged that Imo Jean
Roberds was also discriminatorily discharged on October 11, 1968, but at
the hearing Roberds was deleted from the complaint
"The Company produced testimony through Professor Carroll Dowell
relating to the first aid course at Arkansas Tech Dowell explained this was
a 16-weeks intensified course given on a sophomore level, that he would
not recommend taking the course without a high school education, and
that the first aid course given by the Red Cross is not comparable to this
one at the college
"Bizzell is a sister to Sweeden
"A general layoff resulted in November 1968, and a line is drawn on the
seniority list below the name of Dorothy Mortensen All female employees
below that line were laid off except three which Leonard explained It is
company practice to recall these employees, according to date of hire and
Williams' name is very close to the top (See Charging Party's Exhibit I )
Leonard further testified that on Williams' discharge slip is the question,
"Is this employee eligible for rehire9" and the word "yes" is marked, and
it is the supervisor's responsibility to state whether an employee is eligible
for rehire
ATKINS PICKLE COMPANY, INC. 945
activity for the Union was the real motivating factor
which actually triggered her discharge on October 11,
1968
For the most part, the Company hinges its defense on
the contention that even though Bizzell had less seniority
than the discriminatee - Williams was terminated
because of the circumstances involving the adequate
staffing of a first aid station by a trained employee so as
to reflect the wishes of the Respondent's insurance carrier
However, it is clear in this record that the insurance rate
was granted notwithstanding the fact that the Respondent
did not have a qualified nurse, and it is equally clear the
insurance rates were not lowered following Bizzell's
completion of the first aid course Moreover, although
Wallace testified he knew Williams or Roberds might
qualify for admission into Arkansas Tech by taking a
"G.E.D test," he admittedly did not offer either Williams
or Roberds an opportunity to take such test, and these
tests were available for meeting entrance qualifications
when applicants were not high school graduates. This
record further reveals that in 1968, Williams herself took
a Red Cross course in first aid, and that over the years
she always did her share of first aid work at the plant. In
the final analysis, Bradley even admitted that Williams
did as good a job in first aid as anyone else
In addition to the above, there are also other factors
which reflect some questions as to the Respondent's real
motivation on the issue of the discharge in question
Wallace initially agreed that the Respondent's handbook
called for seniority as the basis for determining who would
be laid off, but then maintained the seniority basis would
not be applicable for jobs "done away with," and in such
instances other criteria can be used as a basis for
terminations Moreover, at no time during the termination
conversation did Wallace offer Williams an opportunity to
transfer to another department or area in the plant, and
even though she was well qualified by past experience to
work at most any job Charging Party's Exhibit I shows
the Respondent felt it was necessary to carry Williams on
their recall list, and the notification of termination also
indicates that Williams was eligible for rehire. However,
by failing to inform Williams on the possibility of any
recall, it must be deemed another factor in the overall
pattern which cast serious doubts on the Respondent's
motivations These circumstances also considerably
detract from the Respondent's contention that Williams
had had work habits Whatever beneficial inference is
suggested by placing Williams' name on the recall list-and
the testimony by Wallace that during the "fresh pack"
season of 1969 she would go back to the lab on a seasonal
basis - is then subsequently all confused and
intermingled by Bradley's candid admission that Williams
was discharged and not laid off.
The Respondent's descriptions of Williams' work habits
are also belatedly designed to help bolster the defense, and
the record clearly reveals this to be true In this respect
the argument and summary by the General Counsel is
amply supported. He states the following:
Joe Bradley's testimony clearly indicates that Williams'
shortcomings were allowed to exist for nearly five years
without any effort on the part of Respondent to
discipline Williams. Bradley described Williams'
adherence to her work schedule as "erratic "
Significantly, Williams' "erratic" adherence to
Bradley's instructions merely resulted in his discussing
the matter with Williams on one occasion over a period
of six months. No reprimand was placed in Williams'
personnel file In summary, Bradley testified that he
was not "so displeased" with Williams' actions that he
thought it necessary to take further corrective action.
Respondent's efforts to thoroughly discredit Williams'
five-year work record can only be described as an
afterthought Additionally, it is evident that the
Respondent considered Williams a desirable employee
inasmuch as she was granted a merit increase in salary
although Bradley admitted that he could have granted
Bizzell a raise without giving Williams a raise
Discriminatory motivation is further demonstrated in
the open admission by Wallace that in October and
November 1968, the plant expanded the work crew for the
annual "fresh pack" season. Therefore, at the time of
discharge the Company had an increased demand for help,
and yet terminated a very experienced employee who for
several years had continually demonstrated a capacity to
adequately handle all jobs in the laboratory -
Respondent's most complexed department, and the hub of
the entire plant and operations therein Again, as in the
situation of Fisher, the Company relies on the mutual
friendship between Williams and Switzer for her long time
employment Yet, here again we have a period of
approximately 9 months after the departure of Switzer,
wherein Williams continued to work Certainly, if her
work habits and attitude were in such a state of
deterioration as Respondent maintains - it is highly
unlikely the Company would have continued Williams'
employment for several months following the departure of
Switzer In Bradley's testimony, it is further noted his
admission that on at least one occasion when the
laboratory had very little work to do - Williams asked
his permission to peel pickles It is also pointed out that
the first time Bradley heard about the actual decision to
cut back lab people was when it was discussed with him as
to who should be discharged
The Company argues that 'Williams' testimony at the
first trial in August, as aforestated, was "innocuous " I
disagree, and find otherwise Wallace admitted in his
testimony he had heard earlier that Williams was a leader
in the Union, and this is then substantiated by the
numerous and extensive union activities of Williams', as
previously set forth herein. Wallace also admitted that
Bizzell was the "only one of the three" (Williams -
Roberds and Bizzell ) who did not testify at the hearings in
this matter conducted in August and September 1968
During the week following the September 18, 1968,
hearing, Williams' immediate supervisor, Joe Bradley,
made it abundantly clear to Williams that he was
dissatisfied with her continued presence at the hearing.
Williams stated that Bradley called her into his office
after she had attended the September trial and told her he
did not understand how she could get so much time on her
timecard "after being off to go to the hearing," and
especially since she had only testified once. Following the
2 days of hearing in August, Bradley admitted asking
Williams why she was not back at work on the second
day Bradley also admitted he was aware of Williams'
union activities even prior thereto, and went on to say he
and Wallace had probably discussed it and then even
admitted Bizzell had "indicated" she was opposed to the
Union. With the above circumstances, and for all the
reasons stated herein, there is a sufficient showing that
Williams' testimony against the Company in August, also
precipitated her discharge
Considering Williams' length of service, her long time
good work record in general, her known role in the
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational campaign of the Union, Respondent's
failure to offer alternative employment, Respondent's
failure to adequately distinguish the variance from its
normal 'seniority policy for discharge, Respondent's union
animus, as aforestated, the timing, shifting defenses,
conflicting testimony, and conditions under which it
terminated Williams, and the fact that the Company acted
after she had testified against them, along with all the
other circumstances and reasons given - herein -- I find
that the Respondent violated Section 8(a)(3) and (4) of the
Act by discharging Williams on October 11, 1968.
As fully detailed earlier herein, I have found the
Respondent committed certain violations of Section
8(a)(1) by adopting a no-solicitation rule for a
discriminatory purpose, by unlawful interrogation and
soliciting withdrawal cards, and by threatening to cancel
insurance benefits, and thereby also finding merit to
objections 6, 8, and 10. I find that these activities,
occurring as they did prior to the election, were sufficient
to taint the atmosphere so that a free and fair election
could not be held. I therefore recommend that the results
of the election in this matter be set aside, and a new
election be conducted at a time to be determined by the
Regional Director.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, and there found to constitute unfair labor practices
occurring in connection with the operations of the
Company as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing such commerce
and the free flow thereof
V. THE REMEDY
In view of the findings set forth above to the effect that
the Company has engaged in certain unfair labor practices
affecting commerce, I shall recommend that it be required
to cease and desist therefrom and take such affirmative
action as appears necessary and appropriate to effectuate
the policies and purposes of the Act, including the offer of
immediate and unconditional reinstatement, with backpay
computed in accordance with the remedial relief policies
set forth in F W Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co , Inc, 138 NLRB 716 to
Neva Ferguson, James Fisher, and Nina Williams, and
the posting of an appropriate notice. I recommend that
the results of the election herein be set aside and the
representation case be severed and remanded to the
Regional Director for further proceedings.
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following
CONCLUSIONS OF LAW
purpose -- the Company has engaged in unfair labor
practices defined in Section 8(a)(1) of the Act.
4. By discharging employees Ferguson, Fisher, and
Williams in reprisal for their activities on behalf of the
Union, the Company has engaged in unfair labor practices
defined in Section 8(a)(3) and (4) of the Act
5 The aforegoing unfair labor practices affect-
commerce within the purview of Section 2(6) and (7) of
the Act.
6. The Company has " engaged in conduct affecting the
results of the election herein, and the election should be
set aside
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
it is recommended that the Company , its officers , agents,
successors , and assigns , shall-
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
sympathies and activities with respect to the Union or any
other labor organization
(b) Threatening employees with reprisals as a
consequence of their activity on behalf of the Union.
(c) Soliciting the withdrawal of authorication cards.
(d) Adopting a no-solicitation rule for discriminatory
purpose
(e) Discouraging membership in the Union or any other
labor organization by discharging or otherwise
discriminating against employees with respect to hire or
tenure of employment or any term or condition of
employment.
(f) In any other manner interfering with , restraining or
coercing employees in the exercise of their right to
self-organization, to form , join or assist labor
organizations , or to bargain collectively through
representatives of their own choosing and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Offer Neva Ferguson , James Fisher, and Nina
Williams immediate and unconditional reinstatement to
their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges,
and make them whole for loss of earnings resulting from
the Company's discrimination against them in the manner
set forth in the section above entitled "The Remedy."23
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due.
(c) Post at its plant in Russellville , Arkansas , copies of
the attached notice marked "Appendix ." " Copies of said
I The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their union
sympathies and activities , by threatening reprisals on
account of union activity and soliciting withdrawal cards,
and by adopting a no-solicitation rule for a discriminatory
"in view of the age, health, and sex of the discriminatees it appears
unnecessary to provide for the eventuality of their service in the Armed
Forces
"in the event that this Recommended Order be adopted by the Board,
the words, "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals," the words "a Decree of the United States Court of Appeals,
- ATKINS PICKLE COMPANY, INC. 947
notice, on forms provided by the Regional Director for
Region 26, shall, after being duly signed by' the
Respondent's authorized representative, be posted by the
Respondent immediately upon receipt thereof and
maintained by it for a period of 60 days thereafter, in
Enforcing an Order" shall be substituted for the words "a Decision and
Order "
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director in
writing within 10 days from the date of this Order what steps the
Respondent has taken to comply herewith "
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not' altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of the receipt of this
Decision, what steps it has taken to comply herewith.2S
IT IS FINALLY RECOMMENDED that the election be set
aside, and the proceedings in Case 26-RC-3049 be severed
and remanded to the' Regional Director for further
disposition consistent with the findings herein